United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 02-1506

___________

Lazaro D. Borrero, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

Curtis J. Aljets, Immigration and *

Naturalization Service, *

*

Appellant. *

___________

Submitted: December 11, 2002

Filed: April 15, 2003

___________

Before WOLLMAN, HEANEY, and MELLOY, Circuit Judges.

___________

WOLLMAN, Circuit Judge.

Lazaro Borrero is an inadmissible alien subject to a final order of removal.

Because his native country, Cuba, will not accept his return, he was held in the

custody of the Immigration and Naturalization Service (INS) upon his release from

prison on state drug and firearms charges on September 11, 2000. The district court

granted Borrero’s petition for writ of habeas corpus, and he was released from INS

custody on January 4, 2002. The government appeals, arguing that it has statutory

authority to detain inadmissible aliens, indefinitely if necessary, pending deportation.

Our decision in this case turns on the application of Zadvydas v. Davis, 533 U.S. 678
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(2001), in which the Supreme Court adopted a narrowing construction of 8 U.S.C. §

1231(a)(6) in order to avoid a serious doubt about its constitutionality as applied to

admitted aliens. Because the detention of inadmissible aliens does not raise the same

constitutional concerns as does the detention of admitted aliens, we conclude that

Zadvydas’s narrowing construction of § 1231(a)(6) does not limit the government’s

statutory authority to detain inadmissible aliens. Accordingly, we reverse.

I.

The facts underlying this appeal are undisputed. Borrero is a citizen of Cuba

who arrived at the border of the United States in 1980 during the Mariel boatlift. The

Immigration and Naturalization Service (INS) paroled Borrero into the United States

on June 4, 1980. During his parole, Borrero was convicted of simple battery in 1983,

cocaine possession in 1984, and theft from the person in 1987. In 1993, Borrero was

convicted of possession and sale of cocaine and possession of a pistol by a felon.

While Borrero was in state custody on his 1993 convictions, the INS initiated removal

proceedings against him. The immigration judge found Borrero removable and

ineligible for asylum or withholding of removal because of his serious criminal

offenses. The Board of Immigration Appeals affirmed.

On September 11, 2000, Borrero was released from state custody into the

custody of the INS. On September 19, 2000, the INS revoked Borrero’s immigration

parole, citing his firearms offense and his threat to kill an immigration judge. In

accordance with the parole review procedures for detained Mariel Cubans, 8 C.F.R.

§ 212.12, the INS reviewed Borrero’s parole status in March 2001. On May 1, 2001,

after interviewing Borrero and considering various factors weighing for and against

parole, the Associate Commissioner was unable to conclude that Borrero’s parole

would be in the public interest. The district court determined that the Zadvydas

narrowing construction of § 1231(a)(6) applied uniformly to both admitted and

inadmissible aliens and thus held that, absent a significant likelihood that Borrero
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“actually will be removed from the United States in the reasonably foreseeable

future,” he was entitled to release on parole. As set forth above, the district court

granted Borrero’s petition for writ of habeas corpus on January 4, 2002, and ordered

that he be released subject to such terms and conditions the INS deemed appropriate

pursuant to § 1231(a)(3).

II.

We review the district court’s interpretation of a federal statute de novo.

Norwest Bank of North Dakota, N.A. v. Doth, 159 F.3d 328, 332-33 (8th Cir. 1998).

We give substantial deference to an agency’s interpretation of the statutes and

regulations it administers. INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999); Vue

v. INS, 92 F.3d 696, 699 (8th Cir. 1996). If the agency interpretation conflicts with

a decision of the Supreme Court, however, we are bound by the Court’s

interpretation. See Mesa Verde Constr. Co. v. Northern Cal. Dist. Council of

Laborers, 861 F.2d 1124, 1140 (9th Cir. 1988).

This case presents the issue of whether the narrowing construction of §

1231(a)(6) applied to admitted aliens in Zadvydas is in conflict with the construction

of § 1231(a)(6) the INS would have us apply to inadmissible aliens. In Zadvydas, the

Court addressed the government’s statutory authority under § 1231(a)(6) to detain

indefinitely “aliens who were admitted to the United States but subsequently ordered

removed.” 533 U.S. at 682. Ordinarily, “the Attorney General shall remove the alien

from the United States” within ninety days of the date on which the order of removal

becomes final. 8 U.S.C. § 1231(a)(1). However, when an alien’s removal during the

ninety-day removal period is not possible, § 1231(a)(6) provides for continued

detention of that alien:

An alien ordered removed who is inadmissible under section 1182 of

this title, removable under section 1227(a)(1)(C), 1227(a)(2), or
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1227(a)(4) of this title or who has been determined by the Attorney

General to be a risk to the community or unlikely to comply with the

order of removal, may be detained beyond the removal period and, if

released, shall be subject to the terms of supervision in paragraph (3).

The aliens ordered removed in Zadvydas were resident aliens who had been ordered

removed after they had completed sentences for serious crimes. 533 U.S. at 684-85.

Confronted with a statute that placed no time limit on the detention of aliens within

the three specified categories, the Court “interpret[ed] the statute to avoid a serious

constitutional threat,” and “conclude[d] that, once removal is no longer reasonably

foreseeable, continued detention is no longer authorized by statute.” Id. at 699.

Although acknowledging the primacy of the executive branch in foreign policy

matters including immigration and repatriation negotiations, the Court nonetheless

recognized a presumptively reasonable detention period of six months. Id. at 700-01.

Zadvydas framed the issue presented as “whether this post-removal-period

statute authorizes the Attorney General to detain a removable alien indefinitely

beyond the removal period or only for a period reasonably necessary to secure the

alien's removal.” Id. at 682. The “serious constitutional problem” raised by a statute

that permits indefinite detention stems from the Fifth Amendment’s Due Process

Clause prohibition of government detention except as a result of a criminal

proceeding conducted with adequate procedural safeguards or “in certain special and

‘narrow’ non-punitive ‘circumstances’ where a special justification, such as harmthreatening mental illness, outweighs the ‘individual’s constitutionally protected

interest in avoiding physical restraint.’” Id. at 690 (citing United States v. Salerno,

481 U.S. 739, 746 (1987); Foucha v. Louisiana, 504 U.S. 71, 80 (1992); Kansas v.

Hendricks, 521 U.S. 346, 356 (1997)). Post-removal detention is civil in nature, not

criminal, and it applies “broadly to aliens ordered removed for many and various

reasons, including tourist visa violations.” Id. at 691. The Court distinguished

Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953), in which it rejected
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an alien’s due process challenge to indefinite detention, on the grounds that Mezei

had not effected an entry:

The distinction between an alien who has effected an entry into the

United States and one who has never entered runs throughout

immigration law. It is well established that certain constitutional

protections available to persons inside the United States are unavailable

to aliens outside of our geographic borders. But once an alien enters the

country, the legal circumstance changes, for the Due Process Clause

applies to all “persons” within the United States, including aliens,

whether their presence here is lawful, unlawful, temporary, or

permanent.

533 U.S. at 693 (citations omitted). Whereas an alien within the country is entitled

to the protection of the Due Process Clause, whatever process Congress has

authorized will satisfy the Constitution with respect to an alien requesting admission.

Landon v. Plasencia, 459 U.S. 21, 33-35 (1982) (“[C]ontrol over matters of

immigration is a sovereign prerogative, largely within the control of the Executive

and the Legislature.”); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537,

544 (1950) (“Whatever the procedure authorized by Congress is, it is due process as

far as an alien denied entry is concerned.”). The constitutional issue avoided in

Zadvydas is simply not present in the context of aliens who have not effected an entry

into the United States.

Borrero argues that when the Supreme Court narrowly construes a statute to

avoid constitutional doubt, that construction applies categorically to all future cases

whether or not the circumstances raise the same constitutional questions. Although

Xi v. INS, 298 F.3d 832, 835-36 (9th Cir. 2002), and Rosales-Garcia v. Holland, 322

F.3d 386, 405-06 (6th Cir. 2003) (en banc), take this view, we respectfully disagree.

We interpret Zadvydas as limiting the detention of only those aliens whose detention

raises serious constitutional doubt – admitted aliens. See Xi, 298 F.3d at 841-42 (9th

Cir. 2002) (Rymer, J., dissenting); see also Chavez-Rivas v. Olsen, 207 F. Supp. 2d
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326, 337 (D.N.J. 2002) (paraphrasing Zadvydas’s narrowing construction as “an alien

may be detained beyond the removal period, and, if the alien is not inadmissible, such

detention shall not extend beyond a period reasonably necessary to secure removal.”).

Zadvydas itself does not mandate uniform application of § 1231(a)(6) to all aliens.

Noting that § 1231(a)(6) applies to “terrorists and criminals,” 533 U.S. at 697, the

Court stated that “terrorism or other special circumstances” may justify greater

deference to Congress and the Executive. Id. at 696. In light of the fact that

Zadvydas expressly distinguished Mezei on the grounds that Mezei had not made an

entry into the United States, we conclude that Zadvydas’s six-month presumption of

reasonableness is inapplicable to inadmissible aliens.

Finding no statutory time limit on the detention of an inadmissible alien, we

turn to Borrero’s constitutional argument. Borrero contends that if § 1231(a)(6)

authorizes indefinite detention of inadmissible aliens, it is unconstitutional under the

Due Process Clause of the Fifth Amendment. However persuasive this argument may

be, we are bound by the Supreme Court’s decision in Mezei, which Zadvydas neither

overruled nor undermined. Rather, the Zadvydas Court stated that “[a]liens who have

not yet gained initial admission to this country would present a very different

question.” 533 U.S. at 682. Like Zadvydas, Mezei involved indefinite detention, but

the critical difference was that Mezei had not effected an entry into the United States.

Although Mezei was physically present on Ellis Island, “he was ‘treated,’ for

constitutional purposes, ‘as if stopped at the border.’ And that made all the

difference.” Id. at 693.

Mezei involved an alien who, after living in the United States for twenty-five

years, went abroad for nineteen months. 345 U.S. at 208. Upon his return he was

temporarily excluded from the United States by an immigration inspector. Id. On the

basis of confidential information and without a hearing, the Attorney General made

the exclusion permanent. Id. Because no other country would accept him and the
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exclusion order barred him from entering the United States, Mezei faced the prospect

of indefinite detention at Ellis Island. Id. at 208-09.

Like Mezei, Borrero has not effected an entry into the United States. He is

physically present in the United States only because he was paroled into the country

by the INS. Parole does not constitute an entry. 8 U.S.C. §§ 1101(a)(13)(A)-(B),

1182(d)(5)(A). Borrero refers us to cases supporting the proposition that even aliens

unlawfully present in the United States are guaranteed due process of law. See, e.g.,

Plyler v. Doe, 457 U.S. 202, 210 (1982); Wong Wing v. United States, 163 U.S. 228,

238 (1896). Those cases may support extending certain constitutional protections to

inadmissible aliens accused of crimes, but they do not call into question the power of

the government to detain an alien who is stopped at the border. See Sierra v. INS,

258 F.3d 1213, 1218 (10th Cir. 2001) (holding that an inadmissible alien is legally

considered to be detained at the border and thus has no due process interest in release

on parole); Hoyte-Mesa v. Ashcroft, 272 F.3d 989, 991 (7th Cir. 2001) (per curiam)

(holding that Mezei remains good law after Zadvydas, thus annual parole review

pursuant to the Cuban Review Plan satisfies due process); Barrera-Echavarria v.

Rison, 44 F.3d 1441, 1450 (9th Cir. 1995) (en banc) (“[E]xcludable aliens simply

enjoy no constitutional right to be paroled into the United States, even if the only

alternative is prolonged detention.”).

Inadmissible aliens are of course not entirely without Fifth Amendment

protection. See Wang v. Reno, 81 F.3d 808, 813 (9th Cir. 1996) (that parolee was

forced to give testimony that would lead to his “near certain execution” upon his

return to China shocked the conscience of the court and violated his substantive due

process rights). We hold, however, that the regulations governing the parole of

Mariel Cubans, 8 C.F.R. § 212.12, are well within the sovereign prerogative of the

executive branch to set immigration policy and do not violate the Fifth Amendment’s

Due Process Clause. There is no contention that the government failed to follow
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these procedures here. Accordingly, the judgment is reversed, and the case is

remanded to the district court with direction to dismiss the petition.

HEANEY, Circuit Judge, dissenting.

I respectfully dissent. As a result of the majority’s decision, Borrero is

condemned to indefinite detention because he is countryless, despite completing his

time in prison for his criminal acts. This course of action shocks the conscience and

is neither ethical nor constitutional. Moreover, the decision is contrary to other

circuits that have addressed the matter.

Under 8 U.S.C. § 1231(a)(6), any inadmissible or removable alien may be

detained by the INS beyond the ninety-day removal period. The reasonable length

of detention beyond the ninety-day removal period is six months, unless removal is

likely within the reasonably foreseeable future. Zadvydas v. Davis, 533 U.S. 678,

701 (2001). 

Although the Court concluded that lawfully admitted aliens could not be

indefinitely detained, the majority’s opinion, in dicta, did not extend its holding to

aliens who had not effected entry into the United States, explaining that historically

our nation has not bestowed the same constitutional privileges upon inadmissible

aliens. Id. at 693. Justice Scalia was perplexed by the majority’s distinction: “[w]e

are offered no justification why an alien under a valid and final order of removal –

which has totally extinguished whatever right to presence in this country he possessed

– has any greater due process right to be released into the country than an alien at the

border seeking entry.” Id. at 704. Justice Kennedy noted in his dissent, “Section

1231(a)(6) permits continued detention not only of removable aliens but also of

inadmissible aliens, for instance those stopped at the border before entry. Congress

provides for detention of both categories within the same statutory grant of

authority.” Id. at 710. Justice Kennedy explained that there were only two possible
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consequences of the majority’s holding: (1) the holding applied to both categories

of aliens, or (2) inadmissible and removable aliens can be treated differently. Id. He

found the second option unconvincing: “it is not a plausible construction of §

1231(a)(6) to imply a time limit as to one class but not another. The text does not

admit of this possibility.” Id.

In fact, two circuits and the district court in the matter before us have agreed

with Justices Kennedy's and Scalia’s position: there is no credible distinction to be

made between the rights conferred to removable and inadmissible aliens in §

1231(a)(6). In Rosales-Garcia v. Holland, 322 F.3d 386, 404-05 (6th Cir. 2003) (en

banc), the court explained: 

On the basis of the plain language of the provision, we find it

difficult to believe that the Supreme Court in Zadvydas could interpret

§ 1231(a)(6) as containing a reasonableness limitation for aliens who are

removable on grounds of deportability but not for aliens who are

removable on grounds of inadmissibility. Section 1231(a)(6) itself does

not draw any distinction between the categories of removable aliens; nor

would there be any statutory reason to interpret “detained beyond the

removal period” differently for aliens who are removable on grounds of

inadmissibility and aliens who are removable on grounds of

deportability.

The Ninth Circuit also concluded the Supreme Court’s construction of § 1231(a)(6)

in Zadvydas applied to an inadmissible, formerly excludable alien. Lin Guo Xi v.

INS, 298 F.3d 832, 834 (9th Cir. 2002). It explained that “[s]ection 1231(a)(6) . . .

does not draw any distinction between individuals who are removable on grounds of

inadmissibility and those removable on grounds of deportability.” Id. at 835. The

court noted that:

In enacting § 1231(a)(6), Congress chose to treat all of the

categories of aliens the same. The Supreme Court chose to interpret the

statute to avoid a constitutional collision. We cannot choose to ignore
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the language of the statute or the holding of the Supreme Court. Should

Congress decide that differential treatment is in order, it can amend the

statute, subject to constitutional considerations. But a decision to

[rearrange] or rewrite the statute falls within the legislative, not the

judicial, prerogative. 

Id. at 839.

Borrero’s status as a Mariel Cuban provides good reason to believe his removal

order will not be carried out in the reasonably foreseeable future. The INS has

offered no evidence to the contrary. The majority implies that but for Borrero’s

inadmissible status, he would not be subject to potentially permanent confinement.

By manufacturing a distinction between removable and inadmissible aliens–one

which the very statute at issue does not recognize–the majority diverges from

Supreme Court precedent, as well as the Sixth and Ninth Circuits. In my opinion, the

court must extend due process protection to Borrero to prevent his indefinite

detention.

All aliens are protected by the Due Process Clauses of the Fifth and Fourteenth

Amendments: “[The provisions of the Fourteenth Amendment] are universal in their

application, to all persons within the territorial jurisdiction, without regard to any

differences of race, of color, or of nationality; and the equal protection of the laws is

a pledge of the protection of equal laws.” Yick Wo v. Hopkins, 118 U.S. 356, 369

(1886). “Even one whose presence in this country is unlawful, involuntary, or

transitory is entitled to that constitutional protection [of the Due Process Clauses of

the Fifth and Fourteenth Amendments].” Rosales-Garcia, 322 F.3d at 409 (quoting

Mathews v. Diaz, 426 U.S. 67, 75 n.7 (1976)). I agree with the Sixth Circuit that the

Constitution does not permit unlimited government action against anyone, even

inadmissible aliens. Rosales-Garcia, 322 F.3d at 410. I therefore believe that the

indefinite detention of a paroled Mariel Cuban raises the same constitutional concerns

as the indefinite detention of aliens who have lawfully entered the United States
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through other avenues. No matter how unpalatable Borrero’s conduct may have been,

he has served his time for his criminal acts. It is therefore inconceivable that we

would condone the permanent imprisonment of someone simply because his birth

country will not welcome him back. “A life sentence in prison [is] no less

impermissible than the government’s torture or summary execution of these aliens.”

Id. at 413.

It is worth noting that the case upon which the majority relies in distinguishing

between the rights extended to inadmissible and admitted aliens subject to removal,

Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953), is not dispositive

here. “[T]he Mezei Court explicitly grounded its decision in the special

circumstances of a national emergency and the determination by the Attorney General

that Mezei presented a threat to national security.” Rosales-Garcia, 322 F.3d at 413-

14. The Court cited The Passport Act of 1918 as support for the Attorney General’s

authority to exclude and indefinitely detain Mezei. Mezei, 345 U.S. at 210. Borrero

poses no such national security concern. 

Section 1231(a)(6) does not permit the INS to indefinitely detain Borrero.

However, under 8 U.S.C. § 1231(a)(3), Borrero is still subject to supervision under

regulations prescribed by the Attorney General. The court below properly explained

that:

[A] writ of habeas corpus will not make Petitioner a truly free man by

any means. The INS can still impose terms and conditions of release

upon him and can still take him back into custody if he violates those

terms and conditions. In addition, it appears that Petitioner is still

subject to whatever conditions of supervised release may attend his state

criminal convictions and sentence. And, of course, Petitioner is still

subject to removal from the United States whenever the government can

find some place to send him.
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Borrero v. Aljets, 178 F. Supp.2d 1034, 1044 (D. Minn. 2001) (citations omitted).

I agree with the district court’s proposed course of action because it is ethical,

constitutional, and soundly supported by federal statute, Supreme Court precedent,

and other circuits that have addressed the issue. I would therefore affirm the district

court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.